Citation Nr: 0734876
Decision Date: 11/06/07 Archive Date: 11/19/07
DOCKET NO. 05-19 507 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for sleep apnea.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1961 to
December 1987.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from an April 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which denied the benefits sought on
appeal. The veteran appealed that decision to BVA, and the
case was referred to the Board for appellate review.
The Board also notes that the veteran's appeal originally
included the issue of entitlement to an increased evaluation
for carpal tunnel syndrome in the right hand. However, in
his June 2005 VA Form 9, the veteran stated that he was only
appealing the issue of entitlement to service connection for
sleep apnea. As such, the veteran has not filed a
substantive appeal for the issue of an increased evaluation
for carpal tunnel syndrome in the right hand. See 38 C.F.R.
§ 20.202. Accordingly, that issue no longer remains in
appellate status and no further consideration is required.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Reason for Remand: To obtain a clarifying medical opinion.
The law provides that VA shall make reasonable efforts to
notify a claimant of the evidence necessary to substantiate a
claim and requires the VA to assist a claimant in obtaining
that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38
C.F.R. § 3.159 (2006). Such assistance includes providing
the claimant a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to
make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R. § 3.159 (2006).
The veteran's service medical records show that he was
diagnosed with a left nasal polyp in September 1987 and
underwent a septoplasty for a deviated nasal septum in
October 1987. His post-service medical records also show
that he currently has sleep apnea.
The veteran was afforded a VA examination in April 2005 in
connection with his claim for service connection for sleep
apnea. The examiner reviewed the claims file and commented
that the veteran had had sleep disorders for a number of
years going back to at least his active service time.
However, he later noted that the veteran had had surgery to
the oropharynx and soft palate and stated that it was likely
that the physicians found redundant tissue, which was not
likely related to his time in service. The examiner also
opined that the veteran's sleep apnea was not likely related
to his time in service. As such, the April 2005 VA
examiner's medical opinion appears to have internal
inconsistencies. Therefore, the Board finds that a
clarifying opinion is necessary for the purpose of
determining the nature and etiology of any sleep apnea that
may be present.
Moreover, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim, including the degree of
disability and the effective date of an award. In the
present appeal, the veteran was not provided with notice of
the type of evidence necessary to establish a disability
rating or an effective date. As those questions are involved
in the present appeal, this case must be remanded for proper
notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b),
that includes an explanation as to the type of evidence that
is needed to establish a disability rating and an effective
date.
Therefore, in order to give the appellant every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development of the
case is necessary. Accordingly, the case is REMANDED for the
following actions:
1. The RO should send the veteran a
notice letter in connection with his
claim for service connection for
sleep apnea. The letter should
inform him of the information and
evidence that is necessary to
substantiate the claim; (2) inform
him about the information and
evidence that VA will seek to
provide; (3) inform him about the
information and evidence he is
expected to provide; and (4) ask him
to provide any evidence in his
possession that pertains to the
claim. The letter should also include
an explanation as to the information
or evidence needed to establish a
disability rating and an effective
date, as outlined by the Court in
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. The RO should refer the
appellant's claims folder to the
April 2005 VA examiner or, if he is
unavailable, to another suitably
qualified VA examiner for an opinion
as to the etiology of the veteran's
sleep apnea. The examiner is
requested to review all pertinent
records associated with the claims
file, including the veteran's service
medical records showing that he was
diagnosed with a left nasal polyp in
1987 and underwent a septoplasty for
a deviated nasal septum in October
1987. The examiner should note that
the veteran is legally presumed to be
sound at the time of his entrance,
and therefore, for the purpose of
providing medical information which
may be needed in the case, the
examiner is asked to assume that none
of the veteran's sleep disorders pre-
existed service in rendering his
opinions. The examiner should
comment as to whether it is at least
as likely as not that the veteran's
sleep apnea manifested during active
service or is causally or
etiologically related to his
symptomatology in service or
otherwise related to his military
service.
(The term "at least as likely as
not" does not mean within the realm
of medical possibility, but rather
that the medical evidence both for
and against a conclusion is so evenly
divided that it is as medically sound
to find in favor of a certain
conclusion as it is to find against
it.)
A clear rationale for all opinions
would be helpful and a discussion of
the facts and medical principles
involved would be of considerable
assistance to the Board. Since it is
important "that each disability be
viewed in relation to its history
[,]" 38 C.F.R. § 4.1 (2006), copies
of all pertinent records in the
appellant's claims file, or in the
alternative, the claims file, must be
made available to the examiner for
review.
When the development requested has been completed, the case
should be reviewed by the RO on the basis of additional
evidence. If the benefit sought is not granted, the veteran
and his representative should be furnished a Supplemental
Statement of the Case and be afforded a reasonable
opportunity to respond before the record is returned to the
Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The appellant has the right to submit
additional evidence and/or argument on the matter or matters
the Board has remanded to the regional office. Kutscherousky
v. West, 12 Vet. App. 369 (1999). No action is required of
the veteran unless he is notified.
_________________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).